Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Thursday, June 18, 2009

Closing arguments in Capitol v. Thomas-Rasset - Plaintiffs

Mr. Reynolds thanks the jury again for his service and begins his closing argument.

He contends that many theroies and possiblites of what happened in this case were raised by the defendant for the first time yesterday. He argued that Mr. Sibley for the defense didn't talk about the evidence in his closing, because he couldn't. Mr. Reynolds argues that the evidence shows she did it.

He explains to the jury the two elements that Plaintiffs must prove to show copyright infringement. First, that they own and control the copyrights for the works in question. He spent a few minutes referencing the record company executive testimony and the copyright registration which he contends proves that they do in fact own copyrights in all the works in the case. He then explains that Plaintiffs rights were violated by the defendant downloading or distributing the sound recordings.

He then went back to reference Mr. Sibley's closing and noted to the jury that he used words such as "sentence" and "guity" and that those words do not apply here because they only apply to criminal cases. He explained that they will be instructed to find based on the greater weight of the evidence whether or not Ms. Thomas-Rasset violated their copyrights, to which he says they have.

He speaks about the evidence of infringement was that:

It happened

She did it and knew it was wrong

He then went on to explain the MediaSentry evidence. They found a user distributing 1702 sound files using the username tereastarr@KaZaA. He then explained again that they would not see evidence of anyone else tereastarr@KaZaA was distributing music to, because the KaZaA application does not keep these logs. But based on the evidence they could be certain that distribution did happen to more parties that just MediaSentry.

He then went on to argue that there is no question that these works were reproduced, and that the metadata in some works (showing the pirate ripping group descriptions in a few tracks) prove that these were not ripped by Ms. Thomas-Rasset, but downloaded from the internet. He also stated that there is no question that someone with the tereastarr username did it.

He asked the jurors to ask themselves the question "Did Jammie Thomas-Rasset do it?"

He then displayed on courtroom monitors a visual he hoped would demonstrate his points.

The exhibit showed five items: a cable modem MAC address and IP address, the tereastarr username, that her computer was password protected, that she was sent instant messages, and that the shared folder music matches her musical tastes. All five things were represented somehow in graphical form with a red arrow from each to a name in the middle of the screen: Jammie Thomas.

He then talked to the jury about each of these five things. Charter showed that the IP address and modem MAC address a the date and time in question was linked to an internet account that she subscribed to.

The tereastarr username was one that she used. Yesterday was the first time she had ever mentioned somsone else close to her family may have used that username.

Her computer was password protected, and only she had access to the tereastarr account. Again Mr. Reynolds brings up that yesterday was the first time there was testimony indicating other people could use the family account on the machine.

He said MediaSentry evidence confirmed that instant messages were recieved by the computer that they were sent to.

He pointed that over sixty artitst in the shared folder are artists that match the music tastes of Ms. Thomas-Rassets, and lists several bands which she has admitted to enjoying which he does not believe are household names to the jury. He again mentioned that yesterday was the first time she testified about music in the shared folder that was not a match to her musical tastes.

Mr. Reynolds continued on the musical tastes comparison a bit longer, bringing to light some of yesterdays testimony that there were some songs in the shared folder with offensive words. Ms. Thomas-Rasset testified that some of this music didn't match her tastes. Mr. Reynolds pointed out some songs from her own collection that had offensive words. He asked the jury to decide if Ms. Thomas-Rasset would be offended by this music she claims to not match her tastes.

He pointed out to the jury again that there were sixty or more artists in the shared folder that she did enjoy.

The argument the turned to Ms. Thomas-Rasset's previous knowledge about Napster. Mr. Reynolds again spoke about her previous study of Napster in college and her subsequently finding out that the service was not legal. He then tried to paint the picture that someone with this knowledge about computers and Napster he was surprised that she would not have known about KaZaA before this trial.

He claims that what the jury has gotten from Ms. Thomas-Rasset is misdirections, accusations, and new evidence, and that was Plaintiffs offer is none of this.

He stated that MediaSentry found evidence of infringement in 2005, but the songs could have been downloaded much earlier. He again claimed that the CDs she had bought were not relevant and not the source of the music given the metadata evidence about "pirate ripping groups". He contended to the jury that even with Ms. Thomas-Rasset's new accusations it is still more likely than not that she did it.

Mr. Reynolds then turned to the testimony about the hard drive. He stated that they don't know what happened to the hard drive, and whether Ms. Thomas had it when Plaintiffs asked for it or not. But what she did do is deliberatley give both her own and Plaintiffs a new hard drive for expert examination. He states that she deliberately gave the wrong dates for the purchase of the computer and the replacement of the hard drive to cover up evidence. He asked the jury to decide if she has changed her story.

Mr. Reynolds then talked about damages. He states that they never asked for or demanded $3.6 million dollars from Ms. Thomas-Rasset. He said they offered to settle the case for $5,000 many years ago and that she refused to take responsibility.

He then responded to Mr. Sibley's argument that the record company executives that found this case important had all left. He stated that they are busy trying to maintain their business so they can continue to employ many people in the recording industry and that Plaintiffs have not abandonded the courtroom, as Ms. Pariser, plaintiff's representative has been present throughout the entire trial. He then responded to attacks he claims defendant has made against Dr. Jacobson. He states that Dr. Jacobson is trusted to do work for many police departments, government agencies, and given testimony to the U.S. Senate. He argues that those people trust Dr. Jacobson and that the jurors should as well.

He then tells the jury that credibility of all witnesses is for them to determine and that even the defendant does not believe the new possiblities that were presented yesterday. He states that copyright infringement has a huge effect on the recording industry, the evidence states Ms. Thomas-Rasset did it, refused to accept responsiblity and tried to hide it.

He then talked about the damages the jury could award, again stating that copyright infringement has a huge effect on the industry. He argued that the jury can consider many factors, mentioned that the need for deterence was great, and that ultimately the amount of damages to award was completed in the jurys decision.

He ended his closing by asking the jury to hold Ms. Thomas-Rasset responsible.

The court took a 15 minute recess before the jury was charged. They were read the jury instructions and began selecting their foreperson and deliberations at 11:00AM. They will break for lunch as 12:00 and resume at 1:00PM. Deliberations will continue until 5:00PM, unless they conclude earlier.

1 comment:

"He then explains that Plaintiffs rights were violated by the defendant downloading or distributing the sound recordings."

So Plaintiffs have even up to the last second not made their mind up what they claim defendant did and charge defendant accordingly! Unbelievable that such "wischi waschi" claims are allowed before courts that allegedly consider themself serious!

"But based on the evidence they could be certain that distribution did happen to more parties that just MediaSentry."

Hm, the tweets and longer postings; where they from some other trial?

What evidence was there that provided this certainty that there was distribution to more parties then just MediaSentry? Did defendant ripped her own CDs, put "ripped by Jammie Thomas aka. tereastarr" in the mp3 commentfield and MediaSentry was able to get such an MP3 from some other defendants computer in another case? If not, how for heavens sake is there any evidence of distribution to any 3rd party then plaintiffs/their investigators?!

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove